The challenge of polygamy law

Times Colonist

April 17, 2011

Final arguments are winding down in a Vancouver court case that could change our country’s future. The issue at stake is whether polygamy can be legally prohibited.

For several decades, a fundamentalist sect that broke away from the Mormon church has permitted men to take several wives at its Bountiful commune in the Kootenays. That is a breach of Canadian law. Section 293 of the Criminal Code makes marriage with more than one spouse at a time illegal.

However, a recent attempt at prosecution failed. Two of the commune’s leaders were charged. Although one is alleged to have 25 wives, the case was dismissed on procedural grounds.

That raised an unsettling possibility. If forced to decide, our courts might find that religious freedom trumps the ban on polygamy.

To its credit, the provincial government has opted to confront this prospect. The attorney general asked the B.C. Court of Appeal for a definitive ruling: Is the statute blocking polygamy enforceable, or is it not?

Whatever the court decrees, the decision will have farreaching implications.

If the ban on polygamy is upheld, that means religious freedom is only a qualified right. Other interests must be weighed. However, if the ban is struck down, values such as gender equality and the rights of children take a back seat. Religious freedom comes first.

Of course, there have always been limits in matters of conscience. Doukhobor groups who used arson to publicize their goals in the 1960s and 1970s were prosecuted.

And the courts have shown little sympathy for individuals trying to avoid income tax on conscientious grounds.

But polygamy raises deeper issues. Marriage is more than a religious sacrament. It is one of the foundations of our society.

Supporters of polygamy argue it is merely a willing transaction between adults. Some have compared the ban to laws that once made homosexual activities a crime.

But government lawyers point out that polygamy often leads to abusive practices. The court heard testimony that one of the Bountiful leaders took his 15-year-old daughter to the United States to be married, and brought back with him a bride of the same age.

And they note that in similar fundamentalist communes in the U.S., male children are driven away to prevent competition for wives. One witness testified that a boy of 15 and his brother were given $100 and a garbage bag with clothes, and told to leave.

These and other instances of abuse are not in dispute. The issue is whether they are an inevitable part of polygamy, or merely the misdeeds of a few. And that is a more difficult question to answer.

In an isolated commune, with gender-based roles and a strict hierarchy, the risk of exploitation seems high. The arithmetic of polygamy is bound to cause problems.

But what about more relaxed arrangements? If three men and a woman in Esquimalt choose to live together, should the courts get involved?

Yet polygamy involves more than a casual living arrangement. What supporters are pressing for is statesanctioned marriage.

And that does, on the face of it, present problems. Can there be meaningful equality in such an arrangement? In many countries where polygamy is lawful, women are treated as second-class citizens.

And how are the interests of children to be protected? Expert witnesses testified at the hearing that men in polygamous arrangements tend to shift money and attention from raising their children to obtaining more wives.

But whatever the courts decide, this is not just some arcane legal wrangle. Monogamous marriage has proved a vital and useful institution. We should think long and hard before weakening it.

  1. It’s pretty hard to convince people why polygamy should be illegal if gay marriage is legal. Polygamous societies have survived for thousands of years, but if everyone was gay then we’d be extinct in 50-70 years. That means that gay is actually way more dangerous than polygamy. It’s all messed up…

    • In Canada, gay marriage is the legal union of two people to the exclusion of all others. (I’m neither condemning it nor condoning it as this blog is for the discussion of polygamy.) Polygamy is not. If polygamy is allowed to flourish, not only will we see all the harms discussed in The Reference multiply, but there will be a disproportionate number of unmarried young men eager to form gangs and cause trouble. Please study the Mormon militias of Joseph Smith and Brigham Young. Please read about the Mountain Meadows Massacre. And, young, unmarried male Muslim suicide bombers who are promised 70 virgins when they go to paradise. You have no argument, George. Polygamy has no place in modern society, nor does the male machismo/patriarchy that drives it.
      Nancy Mereska, President
      Stop Polygamy in Canada

  2. I’m directing this message to Nancy specifically.

    Polygamy as discussed by you here is very illegal due to spousal abuse, child abuse, statutory rape, even tax evasion. All of these are enforceable laws.

    Have you actually read s293? The law doesn’t address abusive polygamy at all. It does, however, make you a criminal if I were to accuse you of having an open marriage with your husband. Seriously. You should read the law very carefully.

    If I accuse you of being in a poly-fidelity situation in any way, you are now breaking the law. This is how it is written.

    I’m just as disgusted by the abuses happening in Bountiful as you are. The difference is, I’m not a criminal because my neighbour decided to call the police and tell them erroneously that I am in a plural marriage. The law is written so badly that for you to defend it, you are being irrational.

    I have met women who, for whatever reason, are in a polyamorous relationship with 2 men. All 3 are very happy. For having met all 3, do you truly believe I should now go to prison?

    • You should have stopped at your first sentence, Dan, “Polygamy as discussed by you here is very illegal. . .” Yes, it is very illegal, Dan. I’m exasperated with the way you people twist and turn s. 293! Have I read it? I could probably recite it to you in my sleep. Please go to the CPAA site and rail. They like you over there.
      Nancy Mereska, President
      Stop Polygamy in Canada

      • Excellent response.

        Therefore, I think I should contact the RCMP to report that I have heard you are in a polygamous relationship.

        As the law is written, you are now a criminal. People like me? Really?

        • I have trashed most of your comment because you are not allowed to call people dirty names on this blog. Also, be very careful of what you “hear” about me. I have never or will ever be in a polygamous relationship. Further comments from you will be trashed.

  3. If the BC Supreme court stikes the polygamy law, the Canadian Parliament can still overide it using the the “notwithstanding” clause. In fact, they could use that same clause to custom tailor the law so that only Mormon, Muslim and other religiously oriented polygamy is kept illegal.
    My big question is, if the anti-polygamy laws hold up, how should the authorities go about enforcing it. Oler and Blackmore were the first attempted prosecutions in the past 50 years or so.
    Will the RCMP go into known polygamist communties and do mass arrests? Will there be a hotline to report suspected polgyamists in the cities? I am most curious to know what is being envisioned as the final resolution to this problem.

    • You should have contacted a lawyer before making your inane comment. The polygamy issue is in the courts. If s.293 is struck down, it has to go up to the British Columbia Court of Appeal, then to the Supreme Court of Canada. Parliament has no say until the court process is completed.

      “Mass arrests” will not happen. You forget that every woman in a polygamous relationship is “married” to only one man. It is the male polygamists who will face charges. They are the ones who are performing “marriage ceremonies” with more than one woman–that is illegal. They deserve to be prosecuted.


  4. You are wrong. The additional women consented to become the spouse of a person who had a spouse. Therefore they also committed polygamy.

  5. Dan, you are also incorrect. s.293 is not aimed at polyamorists. Maybe YOU should read it. Conjugal union means a marital state of being. Shacking up is not marital state of being. Wishing you could have legal rights and obligations does not make it so. A conjugal union relies upon consents (or not) that imply marital rights and obligations upon individuals who number more than two in a marital relationship. FLDS has a societal “authority” that sanctions plural unions with rights and obligations. Because it is a cult, it is not enforceable as legal rights and obligations, but they have CLAIMED these apply. Therefore it is polygamy to use any social or state authority to bind already married persons to others with marital rights and obligations. Only divorce or death allows married persons to become eligible at that time to take on a new spouse in any manner. Polyamorists do not do that under societal (closed or open) methods. Only polyamorists who mutually CLAIM (such as is a provincial family law court) to be spouses of more than one person at a time, could even conceivably be charged with polygamy. Even then, because their relationships are not sanctioned or authorized by external bodies, they would just be found to be living in adultery (if one or more of them are civilly married or in a common law marriage relationship) Polyamorists are NOT spouses like FLDS and other polygamy “potential” relationships.

  6. So, Paul, furthermore, do you polyamorists have any clue as to what you are asking for? Yeah, decriminalization. That is because you do not want the legal recognition of multiple conjugal (marital rights and obligations ) that occurs in provincial family courts. You all want to be in some kind of limelight because you want to say you have alot of sex. Frankly, Canada doesn’t care. Have fun. Really, no-one cares. Speaks about your “egalitarian” principles.. no one cares.
    Just don’t try to equate your sexual and/or emotional relationships to conjugal rights and obligations. Do not “pretend” you have social or state sanction marital relationships such as might be adjudicated by a provincial family law court upon “divorce”. You polyamorists
    It seems strange you “polyamorists” are so needy of recognition you just won’t shut up about your “potential” wrongdoings. Really, no-one cares,have fun, and certainly love beavers in any manner are not covered under s.293.

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